57 So. 404 | Ala. Ct. App. | 1911
This suit was brought by appellee against the appellant for damages he alleges in his complaint he sustained by reason of the negligence of the appellant’s servants while acting in the line of their emplojunent in the management of an electric car. There were two counts to' the complaint, one alleging that the damages were caused by the negligence, and the other by the wantonness of appellant’s servants or agents. The appellee’s theory was that, while a hack-man in his employ was driving one of his closed hacks
Appellant’s theory was that the hack and the car were traveling in the same direction as above stated, but that, when the servants of appellant first came in sight of the hack, it was not on the track of appellant, but on one side of it and sufficiently far from the track for the car to have passed it without injury; that appellant’s servants sounded the gong and blew the Avhistle to apprise the hackman • of the approach of the car, which was then traveling at such a rate of speed as was reasonable and warranted by the surrounding circumstances; but that, either because the hackman Avas asleep or drunk, or for some other reason which was unknown and could not have been known or reasonably anticipated by appellee’s servants, the hackman, just before the car reached him, drove upon the track; that when
1. There were a number of special pleas to the complaint, demurrers to all of which were sustained, and the case was tried upon the general issue. The action of the trial court in sustaining the demurrers to each of the special pleas is here assigned, separately, as error., The pleas were skillfully drawn, and we cannot indulge the presumption that the defects existing in any of them were due to the inadvertence of counsel. While it may appear that their defects were strictly technical, they were, as we have said, drawn by some one eminently versed in all the requirements of the art of pleading, and a slight defect in the work of art is frequently .more glaring and more disastrous in its results upon the particular work than a gross imperfection in some production of a clumsy .amateur. In other words, each special plea was evidently advisedly filed in the case for the purpose of presenting the question as to whether its alleged defects destroyed its efficacy as 'a perfect plea in bar to the right of the appellee to recover the damages alleged to have been sustained by him in the manner stated in the complaint.
Each plea is an alleged plea of contributory negligence, and none of them is available, on demurrer, as a plea to the second count, which charges wantonness. Were any of the pleas available on demurrer as an answer to the first count in which only simple negligence is alleged?
Each plea alleges that the hackman “negligently went upon or dangerously near said track,” or that he “negli
The seventh, eighth, and ninth pleas seek to raise the question as to whether, when property which is in the hands of a bailee is injured through the negligence of another, the. negligence of the bailee prosimately contributing to the injury, the bailor can recover the damages growing out of such injury. The most intelligent discussion that we have been able to find upon this subject is to be^ found in the case of Illinois Cent. R. Co. v. Sims, 77 Miss. 325, 27 South. 527, 49. L. R. A. 322. In that case the court held that where property is in the possession of a bailee and, while being used in accordance taith the terms of the bailment, is injured by a third party, and the bailee’s negligence contributes to the injury, his negligence is imputable to the bailor.
We refer to the above case, not for the purpose of indicating our views as to whether the decision in that case is or is not a proper statement of the law, but for the purpose of pointing out the fact that neither of the pleas under discussion is brought within the terms of the rule which appellant invokes. In neither of the pleas is it averred that the hack was being used by its driver in accordance with the terms of the bailment, and the demurrer to each of said pleas was therefore properly sustained on that ground. While plea 7 avers that Robert Johnson was, with the knowledge 'and consent of ap
Plea 10 was subject to demurrer because it fails to show that the proximity of the car' to the hack when its driver, without looking or listening, drove “across, upon, or dangerously near the track,” rendered the act of the hack driver, in so doing,' negligence. The plea says that the car was then and there approaching the place at such a rate that it was impossible to stop said car before it struck said vehicle. It may be, from aught that appears in the plea, that the car was 200 yards from the hack when it turned “dangerously near, upon, or across the track,” and that the car was then running at the rate of 50 miles an hour around a curve, and that it could have been neither seen nor heard by the driver •if he had “looked and listened.” While the plea says that 'Johnson “negligently caused said horse while attached to said vehicle to go upon, across, or dangerously near the defendant’s track without looking or listening for said car, which was then and there approaching said place,” it may be, so far a.s the allegations of the plea are concerned, that, if the driver had looked and listened, he would have neither seen • nor heard anything indicating that he did not'have ample time to cross before appellant’s car reached him, and that the entire danger was due solely to thé high' and excessive rate of
2. During the progress of the trial, a witness was asked as to how the hackman appeared immediately after the accident. Answering the question, the witness answered, “He got out and looked like he had been asleep or something, and said he had been asleep.” The latter part of the answer was, upon motion, properly excluded from the jury because it was not responsive to the question. Thereupon the same witness was asked what the hackman said immediately after the accident. The court refused to allow the witness, on objection of appellee, to answer the question, and appellant reserved an exception. As appellant failed to inform the court what he expected to prove the hackman said, the court was unable to say whether the testimony thus sought to he elicited was or was not relevant. The trial court,, therefore, will not he pnt in error for such refusal. It may be that the intention was to offer testimony to the effect that the hackman said he was asleep when the-accident occurred; but it is possible that the testimony would have shown that he said more than that, and the appellant should have informed the court exactly what he did expect to prove, so that the trial court could have,, before the witness answered the question, determined whether such testimony was relevant or material. The-practice of admitting irrelevant evidence and after-
In this connection we dispose of the eighteenth assignment of error by stating that it presents nothing for ■our consideration because no exceptions were reserved, in the court below, to the exclusion of the court, on motion of 'appellee of the evidence referred to in said .assignment of error.
3. Some exceptions were reserved upon the trial for ■our consideration, going to the action of the trial court in refusing to allow the appellant to prove that when the ■car came in sight of the hack, and up to the time it ■came up to within a few feet of the hack, “the car would
In addition to tbe above, one of tbe witnesses for appellant — tbe motorman — testified (and that evidence remained with tbe jury) : “Tbe cab was not in tbe path of tbe car at that time. Tbe horse turned right in front of tbe car just before I got to it.” In tbe case of Birmingham R., L. & P. Co. v. Randle, 149 Ala. 544, 43 South. 355, after tbe witness bad stated tbe distance, in feet, tbe deceased was from tbe track when be first saw him near tbe track, it was held that it was competent for tbe witness to state that “tbe car would not have struck him in passing him at that distance from tbe track,” and we think that a careful analysis of the reasoning of tbe court in that case will convince tbe most skeptical that tbe action of tbe trial court made tbe basis of this assignment of error does not constitute reversible error.
Where the street is too narrow for a vehicle and a .street car to pass through it at the same time, it is evident that a driver of a vehicle and an operator of a street car have equal rights of passage, and upon each the law devolves the same duty as to the avoidance of injury.—B. R., L. & P. Co. v. Oldham, 141 Ala. 195, 37 South. 452, 3 Ann. Cas. 333.
Where a car is traveling down a street which is wide enough for vehicles to pass the car without injury, and the motorman or other person in control of the car sees a vehicle upon or dangerously near the track, the car
The above is stated subject to the qualification that a motorman is not necessarily obliged to stop his car. when he sees a vehicle- ahead of him on or in dangerous proximity to the track, but he is required to keep his car under proper control and running at such a rate of speed, when he does see a vehicle upon or dangerously near the track, that, if he ascertains that the driver is ignorcmt _ or heedless of his approach, he may have sufficient time within which to stop the car and prevent a collision.—Schneider v. Mobile L. & R. R. Co., 146 Ala. 344, 40 South. 761. The rights of a street railway company to the use of a. street, subject to the limitation that its cars can run only upon its track, are the same as the drivers of any other vehicle, and, when a car is overtaking a vehicle on or dangerously near its track, a proper regard for the rights of others requires that the car be reduced to such control that it may be immediately brought to a standstill if necessary.—Consolidation Traction Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135.
As we have above said, if a motorman, in charge of a car, sees a vehicle on the track or dangerously near it, and that the driver is either ignorant of the approach -of the car or driving without regard to it, it is the duty of the motorman to so regulate the speed' of his car as to be able to immediately stop it, and to actually stop it, in time to prevent injury, if that becomes necessary, and, if he fails to do so and damage results by reason thereof, the railway company is liable therefor. In
It is therefore manifest that if the motorman in charge of appellant’s car saw appellee’s hack on or dangerously near the track and going in the same direction-as the car, that it was a closed hack, and that it was-raining at the time, and there was nothing to indicate-that the driver of the vehicle was aware of the approach of the car, or if it appeared that he was driving regardless of the fact that the car was approaching, it was the duty of such motorman to have at once reduced the speed of his car and to have placed it under such control that he could at once stop it if necessary. And if the street in which the hack was being driven was too narrow for the car to have passed the hack in safety, then it was the absolute, imperative duty of the motorman, when he discovered the hack in the street, whether thehackman was aware or mindful of the approach of the car or not, to have at once so placed his car under control and to have so reduced its speed as to have prevented the collision.
There was no plea of contributory negligence in the case, and it is evident, therefore, that the trial court committed no error in giving the last two charges which the appellee requested it in writing to give to the jury, and that it was free from error in refusing to give to the jury charges 5, 6,15 and 16.
6. While there was evidence in the case from which the jury could have inferred that the hack could have been passed by the car without a collision if the horse had not been turned across the track, nevertheless there was evidence from which the jury also had the right to infer that the hack was in dangerous proximity to the track from the time the car came in sight of it until the collision occurred; that its driver was proceeding without regard to the approach of the car; and, from the circumstances, that the motorman knew or could reasonably have discovered that he was heedless of its approach.
It is therefore our opinion that the trial court properly refused to give to the jury charges 18 and 10, -which the appellant in writing asked the court to give to the jury.
And, in this connection, we may add that the court properly refused to give to the jury charge 13, which appellant in writing requested it to give to the jury. It had already, at the request of the appellant, given to the jury written charge 9, which was similar in all respects to said charge 13.
7. Section 5476 of the Code, so far as the burden of proof is concerned, applies to street railways, and where any person or stock is killed or injured, or other property damaged or destroyed by a street car of a street railway, the burden of proof, by virtue of said section, is upon the street railway company to show that there was no negligence on the part of the company or its agents.
It follows that the - court properly gave to the jury charge 1 requested'in writing by appellee, and properly refused charges 10, 12, and 14., which the appellant requested it to give to the jury in its behalf.
8. The question as to whether, under the facts of this case, the court erred in submitting the question as to whether there could be a recovery for punitive damages, is immaterial. It-is obvious that, under the evidence as to the amount of the injury, the jury, by their verdict, only allowed appellee the damages actually sustained by him.—City of Eufaula v. Simmons, 86 Ala. 515, 6 South. 47.
9. When the oral charge of a court contains an elliptical expression or a sentence which might mislead the jury, the true remedy of a party aggrieved thereby is to ask a written explanatory charge.—B. R. L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 South. 817.
We think that we have indicated, in what we have above said, that in our opinion the oral charge of the court, if subject to criticism, was subject to criticism only because it may have possessed a misleading tendency, and that this judgment should not be reversed on that account. —2 Mayfield’s Dig. p. 573, § 214.
We have, in the above opinion discussed all of the matters insisted upon in the briéfs of appellant’s counsel in which there appears any merit, and, as we are of opinion'that no error was committed by the court on the trial of this case which was in any way prejudicial to the rights of appellant, we are therefore of the opinion that the judgment of the court below should be affirmed.
Affirmed.